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New study analyzes AIDS cases, identifies trends.

Attorneys handling AIDS cases will want to review a new study released recently by the Kaiser Family Foundation: "The AIDS Litigation Project III: A Look at HIV/AIDS in the Courts of the 1990s."

Prepared by Professor Lawrence Gostin and colleagues at the Georgetown University Law Center, the study provides summaries and analyses of 310 cases litigated in federal and state courts between January 1991 and June 1996 and shows how each case fits into overall trends in AIDS litigation.

At a July 24 media briefing in Washington, D.C., Gostin said, "There are few substantive areas of law that have not been implicated in AIDS disputes.

"HIV has been center stage in legal dramas involving negligence claims, criminal law, family law and custody disputes, discrimination, and public health authority."

The epidemic, he said, has affected schools, workplaces, prisons, and home less shelters. A recurrent theme in litigation is the conflict between public health concerns and protection of individual rights.

Gostin reported that some of the most contentious and socially divisive cases are emerging in the health care industry. Among issues being addressed in that sector are

* the privacy rights of HIV-infected health care workers versus the potential medical risk of transmission,

* compulsory HIV testing of health care and emergency care workers,

* the rights of insurance companies to cap coverage or deny reimbursement for experimental drug therapies, and

* the liability of blood suppliers when tainted blood results in transmission of HIV.

The study describes the state of the law and notable trends in several categories: education; protection of blood supply; public health powers; criminal law (including transmission of HIV and compulsory testing); private tort actions (including negligence and fear of exposure); duty to protect workers; family law; privacy and confidentiality (including unauthorized and court-ordered disclosures); discrimination (employment, housing, and health care); and the rights of vulnerable persons (prisoners and the homeless).

"In many instances, litigation demonstrates continued injustice and uncertainty," said Gostin.

For example, the "significant risk" standard in disability laws has been bent to permit discrimination in cases where the probabilities of transmission are exceedingly low. The public's "right to know" has rationalized breaches of privacy and confidentiality.

The business interests of insurers have often taken precedence over the health care needs of infected people. And the administrative efficiency of the corrections system has justified infringements on inmates' privacy.

"Even if science cannot find a prevention or cure, society can learn to treat people living with this virus with dignity and respect," said Gostin. "Now that HIV is known not to be transmitted through casual contact, it ought to be possible to dispel or at least quell the fears and prejudices evidenced in education, employment, and housing."

According to Mark Smith, executive vice president of the Kaiser Family Foundation, the cases surveyed in the report "provide a kind of barometer of the social impact" of AIDS.

"Advances in treating HIV disease will be meaningless if discrimination is permitted to undermine public health efforts," he said.

In other words, if people fear the social and economic consequences of being diagnosed with HIV, they may forgo testing or fail to discuss their condition with health care professionals.

"We hope that this report will be a valuable resource for lawyers, litigants, jurists, and others with an interest in developing sound policies to confront the HIV epidemic," said Smith.

He noted that the new study marks the 15th anniversary of the first epidemiological report on what later came to be known as AIDS. On June 5, 1981, a brief article appeared in Morbidity and Mortality Weekly Report, the disease surveillance journal of the Centers for Disease Control and Prevention, describing the cases of five otherwise healthy gay men who had a type of pneumonia previously seen only in people with severely compromised immune systems. In 1995 the CDC noted that the number of reported AIDS cases had passed the half million mark.

Single copies of the report (Publication No. 1164) can be obtained free of charge by calling the Kaiser Family Foundation at (800) 656-4533.
COPYRIGHT 1996 American Association for Justice
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Copyright 1996, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Dilworth, Donald C.
Date:Sep 1, 1996
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